Category Archives: Social Platforms

It’s that special time of year again when I have just submitted the final grades for my Law & Social Media class at the University of Texas School of Law. Hard to believe that I’ve been teaching it for five years now but every year brings something new to the area. This year’s exam was inspired by some recent events, the Gabbing Geek podcast, and a few too many detective movies (well, really, all the Dresden Files books). How would you have done?

Question One

She keeps looking out the dirty windows to make sure her Tesla isn’t being broken into. Your office is in that part of town, a part that she normally won’t be caught dead in. But here she is now.

“Mind if I smoke?” she asks, tapping on a silver cigarette holder that you thought only existed in black and white hard-boiled detective films.

“Yeah.” You toss your thumb to point at the giant “NO SMOKING” sign on the wall behind you. Right next to the “Social Media Fixer, Inc.” sign you used to hang on the outside door but too many people kept marking it up.

“They said you could help me,” she says in disbelief. Looking around the threadbare office, she looks like she’s been the victim of an online prank.

“Maybe,” you tell her. “Don’t judge me by the offices. I’m a big deal on Instagram. That was a joke.” You offer the last part because you’re not sure if she’s ever heard a joke, judging on the look she’s giving you. Or maybe you’re just telling it wrong.

“Fine,” she settles back into her chair. An impressive feat because you know how uncomfortable that chair feels. “I run an incredibly successful social media platform called Modular Academic Dreams Exist, Uniquely Personal. But everyone just calls it MADE-UP. We have hundreds of millions of users around the world. We allow them to share content with each other, interact with their friends’ posts, and even schedule events.”

“So, like Facebook,” you respond.

“Yes, but MADE-UP. Anyway, when we first launched we had one sentence for our Terms of Use: ‘Be cool.’ But now we realize that we need a more…robust document.”

“Might help,” you offer.

“Right. But I’m really not sure where to start. And I need to convince my Board of Directors to make the change. Could you give me some advice? Maybe start with three of the most important parts of the Terms of Use we should create, and some kind of strategy for rolling out those changes? Something I can take back to my Board because…” she glances out the window, “I doubt they’ll want to come here.”

Question Two

Six months later, the MADE-UP CEO is back in the uncomfortable chair. She left the Tesla at home this time, electing to take a taxi since Uber and Lyft still haven’t come back to this part of town. She looks about as comfortable as last time but just the fact that she’s back means you gave her good advice and she knows it.“Those Terms you wrote are great,” she says. “Okay, more than great. They’ve

“Those Terms you wrote are great,” she says. “Okay, more than great. They’ve really helped us out of some problems and our outside counsel say that without those Terms we would’ve been in a lot of trouble.” You try not to look too hurt to discover she’s hired other lawyers.

“But the one argument our other lawyers” ouch “keep facing is when users claim they never saw the new Terms. So we want to make a giant, splashy campaign all around the Terms. We don’t just want people to see them—we want them to WANT to see them!

“So I came up with a plan and everyone tells me it’s brilliant,” she smiles. Probably because you’re the CEO, I think, but wisely don’t say. She continues, “I want you to give me some honest feedback. It’s a two part plan.

“First, I want to create a graphic novel out of our Terms of Use. We’ll hire artists to create pages that copy other comic books, only instead of people talking or thinking or whatever they do in comic books, it’ll be our Terms instead. Since the pages will look like the most famous comic book heroes everyone will want to read it. We’ll use all the best heroes: Batman, Wonder Woman, Superman, Spider-Man, Wolverine, Madame Xanadu—the true icons of the industry!

“And then second, we’ll do something similar but with video. I know some digital artists who say they can take video clips from the hottest movies and TV shows and then alter the characters’ lips to show them reading our Terms. We’ll hire some celebrity impersonators to do the characters voices so it’ll look like these people in The Walking Dead or The Magicians or Better Call Saul are reading our Terms!”

You grimace. She notices.

“What?” she asks. “Tell me what’s wrong with that plan. Or tell me what works. Just tell me!”

You take a deep breath and tell her what you’ve been thinking.

Question Three

Another six months, another taxi drops off the MADE-UP CEO at your doorstep. Well, your landlord’s doorstep. She eyes the chair warily before sitting back down in it. You’ve been meaning to get a more comfortable chair. But you haven’t.

“I should have come to you sooner,” she starts. “Especially since you’ve given me such great advice before. But I’ve learned my lesson. We fired our General Counsel over this mess—help us fix this problem and the job is yours. I’m guessing it pays…” she adjusts herself in the uncomfortable chair, “Slightly more than your current wages.

“Our marketing team started working with the most influential users on our platform. People with tens of thousands of followers. We would connect those users with brands wanting to promote their products. It was a win-win situation, the marketing team told me.”

“Marketers,” you nod knowingly.

“Right. So we had this program. Brands pay us a few thousand dollars, we pass most of that money along to the users, and the users would post pictures and videos of themselves using the products. And we would help promote that content by giving it preferential viewing for anyone on our MADE-UP platform.

“About a dozen of the brands and the influential users in the program got some letter from the FTC. And now those brands are upset with us because we never told them about some need to disclose? Is that really a thing? I guess it is.

“Now we need to change our program so that our brand partners and influential users are following the disclosure rules. I need you to draft some kind of rules or communications or training or something so that I can make everyone understand what they need to do.

“Tell me what to do for our brands, for our users, and for my marketing department. Fix this and you’ll be our new General Counsel.”

You stand up and remove the “Social Media Fixer, Inc.” sign from the wall. You won’t be needing it anymore after you give her your advice.

It is time for Facebook to look itself in the mirror and decide who it wants to be when it grows up.

In the wake of the 2016 US elections there are volumes of conversations taking place over our possible future, the ongoing tension and conflicts, and the root causes of the election. The causes are numerous and not simple to categorize–your perception of the election’s results may make you view one cause as a positive or a negative, for example. But the causes are out there and, if they did not have the impact they desired, then the results of the election compel those causes to re-examine their purpose and impact. Facebook is one of them.

Mr Zuckerberg’s post talks about the potential impact of fake stories that circulated on Facebook. He believes those stories had no impact, but that also once you go down the road of trying to mark stories as true or fake you get into dangerous territory. Even mainstream reports may omit details or sometimes get stories wrong. That is entirely valid criticism and it is entirely hogwash.

Certainly you can draw the line at marking what is a real or fake story and you can argue about moving that line. Right now, no such line exists. That allows completely fabricated stories to gain widespread circulation perpetuating their untruths. Once that bad information has taken hold it is almost impossible to eliminate their impact, as Facebook well knows with the constant resurgence of Facebook untruths (Facebook is going to start charging you, if you post something then you keep control of your content, they now own all of your photos, etc.). Even if another true story circulates right after the original fake story you will still have a large number of people who think the fake story may have had a detail wrong but the overall theme is true. And of course that has an impact.

Facebook and other social media sites have become widely popular for lowering the barriers of distributing content. We can now connect with people and share information with simplicity and ease. That has powerful positive effects but it also has some drawbacks. The widespread dissemination of fake news is one drawback and that can be addressed by Facebook if it wanted to do so.

But there’s a bigger picture here, one that I fear Facebook is missing by only talking about fake news. Because the true impact of Facebook and all of social media isn’t just about fake news but rather that these platforms designed to increase communications between people may be doing the opposite. There is a wealth of articles and research about how the same technology that gives us access to so much content may also force us into a bubble of only content that we agree with. The most recent iteration is how this may have impacted the election, such as this New York magazine article points out, but this is an older concept as this fantastic 2011 TED talk points out (carve out 9 minutes to watch it if you can).

This is where Facebook can best start looking in the mirror. Because Facebook doesn’t just set up bubbles for its users, it is a bubble generating machine.

Facebook stays successful by making sure you keep coming back. It wants to give you content you find compelling and enough new material so you visit the site many times a day. It also can’t give you too much content or you’ll get frustrated and leave. And it also can’t give you content that will make you never come back–whether because you found it offensive or distasteful or any number of reasons.

This is the entire reason for Facebook’s Edgerank algorithm and why you sometimes see articles complaining how Facebook users don’t see all their friends’ posts. Facebook constantly tweaks and plays with this program to maximize your time on Facebook. More time on Facebook means you keep coming back and you’ll see more ads that they can sell to fund the platform. That makes sense from a platform and business perspective.

But as a content and media company, Facebook also needs to ask if maximizing user bubbles is truly in the best interests. Compare this to a snack food company that discovers if they add more sugar then people like the snacks more, they consume it more, they buy more of it. That makes sense from a business perspective and yet it may not be the best possible outcome.

Facebook and others need to look themselves in the mirror and decide who they want to be. They can take the all business approach of doing what is the best for profits or they can decide there is a greater responsibility at play. I don’t know how to burst those bubbles if Facebook chooses to do so. I do know that Facebook has some of the most brilliant content engineers, data scientists, and platform designers on the planet. If they want to address this problem, they can start coming up with solutions. Because bursting those bubbles may be vital in helping to bring people together, to help us increase understanding of problems and come up with solutions. Popping those bubbles may help heal the polarizing partisanship that has only grown over the past years.

Those bubbles may be nice to live in, but they may choke us in isolation. It’s time to figure out whether they’re worth keeping.

Either way, Facebook needs to look at their role in defining public conversations and make a decision. Sticking their head in the sand and pointing at the other causes is irresponsible. No, Facebook isn’t entirely to blame. It also is not blameless. Where it goes from there is entirely within their control.

Nudity + Bad Content Laws = Confusion. While not as popular as the equation E=MC², N+BCL=C is a useful equation for describing a recent decision out of the European Union dealing with copyright and social media.

Copyright and social media are frenemies at best. On the friend side, social media has given authors powerful ways of reaching audiences that were never previously possible. Many people make decent livings based on creating cartoons, movies, or audio files that are distributed via social media. On the enemy side, social media has wrecked havoc with authors’ abilities to control their creative works–the entire purpose of copyright. Find any image on the Internet, right click on it, and save the image. Odds are you just infringed on someone’s copyright. But whose copyright? And did you actually infringe it or is the author fine with you saving the image? What if you re-use that image on a Facebook post or blog article?

There are numerous issues with the (lack of) progression in our copyright laws and the rapid development of technology which easily infringes copyrights. One set of those issues deals with the ability to link to other content on social media. You may post a link on a blog post or on Facebook that can take a reader from your content directly to other content. What happens when the content you link violates someone’s copyright? The issue just became more complicated because of a recent decision by the Court of Justice of the European Union, the top appellate court for the EU. To understand the implications of that case, let’s dive into the details.

First, the good news: the case deals with nudity as I mentioned at the top. That’s usually good to keep people interested. In this case, the nudity at question were naked photos of TV personality Britt Dekker which were taken for publication in the Dutch version of Playboy. Eleven of those photos leaked prior to publication by being placed on a file hosting site.

GeenStijl (Dutch for “No Style”) is a website that posts stories about current events and scantily clad or naked women in varying ratios throughout the week. The day that the photos were leaked online, GreenStijl received an email with a link to the photos. Also on that day, Dutch Playboy, aware that the photos were online, attempted to take down the photos on the file-hosting site but also reached out to GeenStijl asking them not to post the photos.

GeenStijl did not respond to the request. Instead, the next day, GeenStijl published an article that included one of the leaked photos. They also included a link at the end of the article which directed users to the file-hosting site that had all of the photos. Dutch Playboy again wrote GeenStijl asking the article to be taken down. GeenStijl did not respond. But the web site that hosted the eleven leaked photos did respond to Dutch Playboy’s request and the photos were removed from that site.

One week later, Dutch Playboy sent another letter to GeenStijl demanding their original article be taken down. GeenStijl did not take down the original article, instead they published a new article talking about the legal dispute they now had with Dutch Playboy. The end of this second article contained a new link to another website that had the leaked photos. Dutch Playboy contacted the website hosting the leaked photos linked in the second article and that website also removed the leaked photos.

Ten days later, GeenStijl published another article with yet another link to a website hosting the leaked photos. Users of the GeenStijl site filled the comments section of the article with other links to the leaked photos on various hosting services.

All three of these articles were published prior to the actual issue of Dutch Playboy for which the photos were commissioned. Dutch Playboy brought a lawsuit against GeenStijl regarding these links that made their way through the court system before finally landing at the top appellate court.

Let’s get one thing clear: GeenStijl was a jerk in this case. That’s not to say they were, at the time and under their understanding, breaking the law. But they were definitely provoking a publication through their pattern of activities. And that’s okay–cases dealing with content and speech are often filled with jerks who help bush the boundary and test the limits of the legal system so that the rest of us non-jerks benefit from a greater understanding. But that may be important in understanding that the courts in this case may not have been inclined to help out a website acting like a jerk. Unfortunately, their decision may have punished a jerk while also muddying the waters for all legitimate social media users.

By the time the case reached the highest court there was a set of three questions that all dealt with whether GeenStijl had “communicated to the public” (or what we in the US call “distribution” which is one of the protections afforded an author of copyrighted material) by virtue of posting links to protected content. And here the court ultimately answered the questions with a rather convoluted statement (to be fair, it might be simpler in the original Dutch) which I will attempt to untangle. By the way, it’s important to note the court didn’t decide the case–rather they were asked to answer some questions and now the answers will be used to resolve the case. They said it will be hard for GeenStijl to overcome this test given the facts at hand, but another court will have to look at all the details. Here’s what the court said:

To determine if a link to protected content is a communication to the public you must first determine if the link was posted by an individual.

If the link was posted by an individual, but they did not post the link for financial gain, and they had no reason to know the linked content was protected, then it is not a communication to the public

If the link was posted by an individual for financial gain, or by a non-individual (such as a website), then there will be a presumption that the link was known to point to protected content

This presumption of knowledge about the protected nature of the content can be rebutted

Like I said, this probably makes more sense in Dutch. But for us English speakers, there are two really big problems for this kind of test to determine if a mere link to protected content is a legal violation.

Problem 1: The ruling sets up different tests depending on whether the links were made “with pursuit of financial gain.”

Copyright protections are supposed to protect authors so that we encourage people to become authors. So it makes sense to stop people posting copyrighted content without the permission of the author because that could financially injure them. If we are at all concerned about the next level of activity, other sites linking to the unauthorized posting of copyrighted content, then the motivation behind those links should be absolutely irrelevant.

The Court’s test here creates two different tests–one which applies to individuals who are posting links online but not for financial gain, other test for anyone posting for financial gain (which seems to include all websites or activity by more than one individual). These tests shouldn’t be relevant if we’re concerned with protecting the author.

Consider this hypothetical. I make a movie. It’s a really good movie with time travel and robots and aliens and a hilarious road trip in a spaceship and then there’s a big fight with a giant space-Octopus. I’m in the process of taking this movie to various festivals, maybe seeing if I can sell it to Netflix or some other distribution channel. Someone working at one of the festivals takes my movie and makes a copy, then posting it on YouTube. This person posted it on their own site and didn’t give it a descriptive title so nobody watches it. Then a website stumbles across the YouTube movie and posts it on their website under Movie You Must Watch Of The Day. A million people watch the movie and now all my interested distributors don’t want to talk to me because my movie is available for free.

At this point, I wouldn’t care one iota whether that website that posted the link is a commercial venture, newspaper, educational institution, or message forum. Their motivation for posting the link is irrelevant–I have been damaged. Granted, I’m also upset at the person who posted it in on YouTube in the first place, but if we are going to extend those protections to people who link to protected content why should we even consider their motivation? Setting up a separate test for sites based on whether they pursue financial gain (because in this day and age more sites pursue a profit than actually achieve it) doesn’t make sense from the perspective of preserving the incentive for authors.

The court’s test says that a post made for commercial gain will be presumed to know that content they are linking to is authorized or unauthorized. This presumption doesn’t make sense. From the court’s perspective, such a site should know that content is protected and should therefore have better judgement in posting links because they will know if that linked content was authorized or not.

But here’s the thing: despite certain US Supreme Court decisions hinting otherwise there is no such thing as a corporation that can exercise judgment. Corporations, websites, any organization is composed of people. So if one person can’t be presumed to know whether any piece of content on the Internet is properly authorized, how would five people running a website have that breadth of knowledge? Or even a hundred? Or a thousand? Certainly larger organizations with more resources might identify protected content and be able to ascertain if the posting was authorized, whether by virtue of more eyeballs seeing the content or being able to afford some tools to help it identify content, but none of those are perfect. Trying to substitute the pursuit of profit with having enough resources to presume knowledge of content status just doesn’t make sense in our digital world.

US law on this issue is similar but has an important difference: a website could be liable for linking to unauthorized content if it knew the content was unauthorized but there is no presumption of that knowledge simply because the website is trying to make a profit. That’s the key distinction.

Also, when the EU court made this a presumption that can be rebutted, they left open a huge loophole. Let me give you a psychic prediction on approximately 100% of the cases involving this test moving forward: the website that posted the links will say they didn’t know the content was posted without authority in an attempt to rebut the presumption. That’s 100%, plus or minus 0%. And the only websites that won’t be able to make this argument will be the ones who, like in GeenStijl’s case, were sent an actual communication by the copyright owner that the content was posted without authorization.

If that’s the court’s intent then they should have just flipped the test. Instead of presuming knowledge, make a copyright holder tell the website that posts links. If that seems like too much to ask–because why should a copyright holder have to do the extra work of telling everyone not to violate their rights–that’s because it is too much to ask. But that’s exactly what the test will ultimately end up doing.

Maybe the court just isn’t as psychic as I am.

How long this decision by the court is upheld remains to be seen. Perhaps it proves so unusable at a practical level that it is refined or reversed within the next few years. Perhaps courts try to cobble together a patchwork quilt of decisions that mostly follow this test but make it workable. But as it exists right now there are serious problems applying this test to Facebook, Twitter, Google, or any site that hosts a blog (Hey WordPress, what’s up?). And there are even bigger ramifications for those hosting platforms on trying to set up a process to handle this new test. Right now, websites that host content are accustomed to having a process where copyright onwers can assert ownership and take down offending content. Will that system need to be expanded to then impact other sites that link infringing works? Will a failure to do so make these sites contributing to the unauthorized communications to the public, allowing an additional expansion of copyright protection?

The EU’s decision is too recent to see how it will play out, but keep your eyes peeled. This could get ugly fast. Although the court may have been swayed by not wanting to let GeenStijl get away with being a jerk, they may have inadvertently overcorrected the issue and caused more problems than they solved.

Not only have you likely heard of Pokemon Go, you’re also statistically likely to have played it if you have a mobile phone. If you haven’t played there are plenty of guides out there (here’s a video I thought was a good intro) or you can just go to any public place where you see people looking at their phones and ask them.

Given the meteoric rise of Pokemon Go, it is only a matter of time before the game crosses over into doing promotions and marketing activity. There are already reports that the game includes code to run a test promotion with McDonald’s in at least one Asian country. With this many people and brands interested in the hot new game (and eventual platform), my friend and fellow social media lawyer Jim Dudukovich and I wanted to present the seven legal issues you should know around the game for now. This isn’t specific legal advice, just us thinking about the intersection of new technology and the law. And an excuse to play.

1. Pokemon Go isn’t a platform…yet

While Pokemon Go provides an intriguing mix of real world and virtual world entertainment, the interaction between players is currently very limited. Players do not see other players while wandering their virtual map overlays on real world maps. The only interaction with other players is in lures dropped by players and battling/training at Pokemon Gyms.

The swirling purple flowers are caused by lures dropped by players–you can see the lures dropped by other players but cannot see the players themselves.

This is all certain to change in the future. The Pokemon Go terms discuss the ability to trade items with other players even though that functionality does not yet exist. Trading items with other players will possibly come with the ability to communicate with them as well, or perhaps there will be the ability to chat with other members of your team (one of three alliances you join upon reaching level 5 in the game).

While Pokemon Go has currently inspired people to get together and communicate, it is neither required for the game nor supported by it yet. So the game is not a social media platform…yet. But given the rise of players and pop culture awareness, it is almost a certainty that the game will either evolve to become a platform or players will start to congregate around another platform in order to communicate. This places the app more in the realm of just a game for now, but as it expands functionality and brands start to get involved there will be a number of common social media platform legal issues that emerge. So stay tuned. And level up in the meantime.

2. Sponsored content is coming

Where there’s a game, there’s an opportunity for brands to get involved (with varying levels of legality). The model for Pokemon Go has yet to mature (or at least to be announced publicly), but the ways brands can get involved will likely include not only some “conventional” methods, but also some integrations that are possible only with augmented reality.

Going forward, we are likely to see “official” partnerships whereby businesses can become sponsored locations or some other formally identified type of destination with yet-to-be-determined perks (and costs). In order to distinguish the haves from the have-nots, the benefits of paying for participation will need to really break through the clutter of the free-riders in order for businesses to invest (see #3 below). One would assume that part of that bundle of rights would be co-promotional rights, whereby those partners can produce advertising materials featuring elements that only official partners can use.

And with augmented reality comes the ability for brands to buy virtual advertising space; clearly Niantic – should it opt to pursue this revenue stream – will need to be thoughtful so as not to chase away users by overly commercializing the user experience. When users start having to walk around a virtual billboard in order to capture a Jigglypuff, they might begin to revolt.

3. But businesses are already cashing in

As things currently stand, some businesses are near Pokestops, which attract players to their locations to load up on Pokeballs and other virtual supplies and (hopefully) lead those players to buy something from the brick-and-mortar business; at the very least it breeds familiarity and exposure. We’ve also seen businesses buying and dropping lures to attract players, as well as putting up social posts that play off of the game’s name, notoriety, characters, and imagery, including using #PokemonGo. There are even online articles telling business how to take advantage of this claim, like this rather creative one from Shift Communications.

Some examples:

An electronics store in Austin, Texas advertising that it is also a Pokemon Go Gym.

This Brookstone in the Houston Galleria invites players in with a discount.

A post on social media shows an alleged poster by a Navy recruiter utilizing Pokemon Go, although this has not been verified.

Even Yelp has gotten in on the crazy by offering a filter to find businesses near PokeStops.

From a legal standpoint this raises some interesting questions. For instance, if businesses are leveraging the game to attract consumers, would Niantic not have a potential claim for false association/false endorsement? One would think so, but since it’s already been over a week and we haven’t seen any claims, uhm, wait – how long until some form of laches or abandonment defense would attach? But seriously – we don’t know if Niantic has any inclination to attempt to aggressively enforce its trademark rights – it’s making plenty of money from in-app purchases that are attributable to these uses and will likely make plenty more once it launches official branding opportunities. In light of that, so long as the participation by unaffiliated businesses doesn’t interfere with Niantic’s business opportunities to sell official partnerships, and so long as those unofficial users don’t hold themselves out as official sponsors or otherwise engage in behavior that could dilute or undermine Niantic’s trademark rights, we probably won’t see widespread aggressive policing.

4. Does Pokemon Go create attractive nuisances or encourage trespass?

Pokemon Go is not the first geolocation game to exist, but it’s the first to breakout in such a significant way. Having millions of people, many of them under the age of 18, wander around trying to collect virtual property brings some real property issues up in unique ways. These next three topics are just a few of those interesting overlaps between the real and virtual world.

Adults know not to trespass on private property (or the law infers they do) but children are typically given a free pass when it comes to attractive nuisance law. This is the body of law that covers situations when a child illegally enters private property and is injured while on that property. While originally laws in this space required the nuisance itself (piles of lumber, swimming pools, trampolines) to cause the injury, the law has also broadened the landowner’s culpability to include conditions that the owner could foresee would cause injury. Imagine a very visible giant pile of lumber that a child would want to climb and a ravine covered by grass on the way there–that’s covered.

The Pokemon Go terms do imagine this potential risk area. There’s an entire Safe Play section which discusses avoiding physical harm while playing and obeying all laws including trespassing. That doesn’t mean much to the 13 year old who won’t read these terms (and 99% of all other players), but it provides the developer with some protection around players being injured. The terms do not shield property owners, who now may face a slightly greater risk of some injury on their property by players looking for Pokemon. The game is designed to be played by walking around and the game informs players when Pokemon are nearby but not where they are–the only way to track them down is to try walking in different directions and seeing if they are closer to the Pokemon as indicated by the number of footprints near the Pokemon’s picture or outline.

Since Pokemon are placed randomly, it is possible the game could inadvertently provide clues that lead children onto dangerous property or near a dangerous condition. These clues are left vague on purpose, to make it more of an exploration game, but that also can lead children onto private or dangerous property. When the Pokemon finally appears you can click on its location in the map, but getting it to appear can be random. The game also gives you visual clues of where Pokemon might be with rustling leaves–players chasing those leaves may not realize where they are going.

The game itself doesn’t intend this risky behavior, nor can it be prevented currently. It’s also debatable if a landowner would be liable for a harmful condition when they did not create the attraction that drew a child onto the property in the first place. If a landowner is already in a densely populated area and is concerned about children being injured, they probably have already taken action (on the condition itself, preventing access, posting signs). If they are in a remote area it’s hard to imagine local Pokemon Go players entering their property as opposed to visiting areas of attraction (PokeStops which provide virtual items to players). But landowners in the space between may want to be aware of this risk and if they were debating taking action in the past, perhaps now is a time to do so.

While it may be difficult to pin responsibility on Pokemon Go for an attractive nuisance or trespass, it certainly creates an environment where those actions may be more likely to take place. So both players and landowners may want to consider the risks when playing.

The idea of whether a location is appropriate or not is not limited to large national sites, though. Because Pokemon Go is based on work done for a previous geolocation game, Ingress, much of the previous game’s data are used for this new iteration. And because Ingress was based on a storyline involving spiritual energy, many of the featured locations in the game can have a spiritual element such as churches or monuments. Or take, for example, this PokeStop in Austin, Texas:

This happens to be the headstone for my wife’s great-grandmother Fania Kruger–a woman who immigrated to Texas when she was 15 and later became a well-known poet. Is her headstone being a PokeStop a good or bad thing? Is it a celebration of her life to have players intentionally seek out her final resting place and perhaps learn a bit of who she was or learn her name? Or is it a desecration of a place of remembrance for her and the other families whose relatives are nearby? While this may not present a direct legal issue, the reaction to a real world location with emotional interest becoming a game location can cause strong reactions. And those reactions may turn into legal issues as cemeteries, museums, or other public spaces must now develop a position on Pokemon.

6. Are Pokemon Go players loitering?

Laws vary on the subject, but generally speaking most jurisdictions have laws that allow authorities to prevent people from hanging around with no apparent purpose. Typically these laws were used to prevent gang activity or break up groups that might lead to trouble. With small or large groups suddenly appearing in public places, wandering around while staring at their phones, authorities might be curious or concerned. Within the first few days of the game being launched, a story appeared on Imgur of a white man searching for Pokemon in a park late at night only to encounter two fellow players, black men, and while the three of them talked the police were called about a suspected drug deal. The story ended happily enough, with the policeman downloading the game and playing, but under scrutiny the original poster deleted the story.

It is true that Pokemon Go is drawing out populations that were previously playing games indoors. While many people have long bemoaned the lack of America’s youth playing outdoors, society is also shocked and confused when exactly that happens. While businesses seem to be getting in on the action, some even advertising if their stores are PokeStops or Pokemon Gyms (areas where Pokemon are trained and players battle for control of the location), some other locations may be less open to random strangers driving up or wandering around. And authorities may be suspicious of large groups gathering at night. Is it a gang fight or a Pokemon Go meet-up?

The actual definition of loitering may differ by jurisdiction, but it is generally defined as remaining in one place without apparent purpose. Whether playing Pokemon Go provides that apparent purpose or not is debatable and may be up to the discretion of police officers depending on time and location. Shopping malls or other private property that have posted No Loitering signs are possible more sensitive to this kind of activity, so players may want to consider the area before conducting extensive searches or meeting up with other players.

7. Are Pokemon Go players targets for criminals?

In the wake of the game’s popularity came another rash of articles suggesting that players were at risk of being targeted by criminals. There was a report in St Louis of some teens who robbed players, possibly drawing them to their location by dropping a lure (virtual items which other players can see and increase your chances of finding Pokemon). It’s hard to imagine this is an actual spike in crime though–or if so it is by some of the worst criminals imaginable. Targeting Pokemon Go players seems far less lucrative than, say, staking out an ATM where people withdraw money. On the flip side, using a remote PokeStop may yield less rewards but have less chance of getting caught. Unless you’re in St Louis.

There’s also one story that made the rounds of a player who was stabbed while collecting Pokemon but elected not to go to the hospital so he could keep playing. You can read the full account here but I thought the more interesting (and usually ignored) part of the story was how he was out at 1 am, saw another man wandering around, and immediately asked him if he was playing Pokemon. This apparently triggered the man to attack the player with a knife. So maybe the lesson here is to not wander around after midnight playing Pokemon, or not to assume some other person stumbling around in the dark is doing the same. It may also be a lesson to the developers that hopefully they won’t create specific Pokemon that can only be found in urban centers, particularly near bars, in early morning hours.

More to come

Pokemon Go has certainly taken the country and world by storm but these are the very early days of the game. Will it fizzle in the upcoming months, or will it continue to draw a healthy crowd and new functionality as time goes on? We’ll keep our eyes peeled for any nearby rare Pokemon new legal issues around this game and let you know.

Another year in my Law & Social Media class is in the books at the University of Texas School of Law. Having just submitted my grades today, I’m now pleased to share with you this year’s final exam. I had to look around for the right inspiration for this year’s final, only to realize it’s been staring at me for over 15 months. Let me know in the comments what you think, or what issues you spotted in the final exam.

And now, the final exam:

QUESTION ONE

Your dream has come true. Not only have you passed the Bar but you have landed a job with famed Broadway production company Eat The Cheesecake! (ETC). ETC is getting ready to launch a new hip-hop musical about a little known figure from American history: President James A. Garfield. Garfield: An American Musical has been anticipated by theater goers and critics alike for months. The cast has been intensely rehearsing and they are quickly approaching the first few performances.

Although the musical theater crowd all knows about Garfield, ETC management is concerned that few people generally know about President Garfield. The original poster for the production, a picture of the actual President Garfield, tested poorly with focus groups because nobody recognized the photo. To develop a poster that would appeal to more people, ETC launched a pair of contests to come up with a new, consumer friendly mascot that could be the marketing face of the musical. They launched these contests one month before they hired you and they are now about to close.

The first contest allowed individuals to upload an image of the proposed new mascot. The second contest allowed individuals to submit names for the mascot. The online crowd quickly responded with thousands of entries. Unfortunately, despite the high volume, more than 99% of entries in the first contest consisted of a well-known cartoon cat by the name of Garfield. While over 99% of the entries for the second contest all named the new mascot “Garfield McGarfieldface.”

ETC doesn’t want to use these images or name and want to know their options. They eagerly point out to you that, really, they can do whatever they want because it won’t break the rules–they didn’t post any rules for the contests. They just said the winning entries would get a pair of tickets to the show every week for a year (a prize with an approximate retail value of $15,000). ETC would like you to brief them on what their options are for moving forward with the contests and, if they want to run any more contests in the future, what they should keep in mind when creating new promotions.

QUESTION TWO

ETC firmly believes that if they can just get people to hear about some of the exciting aspects of President Garfield’s life then everyone will want to buy tickets to their new musical. To get that message to the masses, their head of Marketing has decided to create a program called Garfield Lovers And Supporters And Generally Nice Announcers (LASAGNA).

Participants in this program would be selected based on their sizable social media following. They would then be invited to a special performance of the musical and they would all leave the show with a collection of pictures and interesting facts about the cast and crew. Program participants would then be instructed to post about the show on social media. For every post LASAGNA members make on social media platforms, ETC will pay the author $10. If the post receives over a thousand interactions (comments, shares, or simple interactions such as Likes) then the author will receive a bonus $20 in celebration of President Garfield being the 20th President of the United States.

ETC has already identified 200 potential influencers for this program–one for every day President Garfield was in office. The only requirement they want to impose upon the participants is that every post needs to have a link to a website where people can buy tickets to the musical.

The head of Marketing would like to know if there are any potential legal concerns over the Garfield LASAGNA program and, if so, how they could be corrected.

QUESTION THREE

Based on your advice with both the contests and the LASAGNA program, Garfield has now been open for a month and the crowds love it. Ticket prices have soared, the cast are swarmed every time they visit a convenience store, and you are officially sold out for the next six months.

One downside to the sudden popularity of the show is the amount of pirated material that is showing up online (YouTube, Facebook, and Instagram mostly). Audience members have been recording some of the songs from Garfield such as “Rosencrans’ Right-Hand Man,” “The Election of 1880,” and “I’ve Been Shot!” While ETC loves their fans’ enthusiasm, the online videos are grainy, shaky, and with horrible audio quality typical of a pirated video from a smartphone. ETC is afraid people might see these videos and think badly of the show.

The cast is also unhappy at seeing so many phones being used during the show and would like for something to be done about it. But the cast is also loving the attention from their fans. One of the stars of the show, Keslie Otum Sr., has said that he would like to schedule some live streams from behind the scenes using Periscope. The live streams would mostly be about hidden details from the show that audience members can’t see, but he’d also like to stream what the cast does backstage when the show is being performed—especially their now nightly ritual of everyone getting together right before the show and singing an inspired cover of “Baby Got Back.”

ETC would like you to let them know what their options are concerning the videos being posted online by audience members and what they should tell Keslie about his live streaming idea.

This is the fourth year I’ve taught my Social Media Law class at the University of Texas School of Law and each year I’ve posted the final exam here on the blog. I’ll be doing the same for this year’s exam later in the week, but I wanted to do something I hadn’t done before: post a model answer. I presented this answer to the class this year after getting permission from the writer, the top score in the final and class last year. Worth Carroll wrote the answer so all credit to him. If you want to re-read the questions he’s answering, here is the final exam from that year.

Would you have answered differently? When I went over the answer in class there were certainly points that came up that weren’t in this answer, and this answer also had points that the class hadn’t considered as well. Taking a law school exam is always a difficult task so it’s hard to say what you could do in the three hour situation, but this was a fantastic set of answers to the questions. Take a read after the break and see if you agree.

Every September it emerges like a cloud of locusts but far more annoying. The posts.

Facebook has changed its privacy policy and is going to start charging you tomorrow unless you post the following UCC provisions and use some really strong words to say you DO NOT ALLOW THIS! It might help if you stomp your foot too. And you have to copy and paste this, for no good reason other than its funny as hell that people believe this nonsense.

But I decided to make it easier for people to detect these hoaxes with the following list of bogus nonsense that can help you find the next Facebook hoax. Some of this is a bit of tough love if you’ve been one of the people spreading this rumor–but it’s time for you to put your thinking hat on. Yes, even while using social media.

The next hoax may take a different form or say it’s for some other reason, so I’m giving you all the ammunition you need to find and kill hoax posts.

1. It asks you to copy and paste something into your status update.

Look, I know your status update is really important to you as a Facebook user. It’s where we tell people about how much fun we’re having and the great deal we got on something and how we’re really, really tired. But it isn’t a Magical Contract Box. You don’t get to put text in it and have that conjure some mystical legal impact like changing your terms with Facebook (check reason number 6) or giving yourself some extra degree of privacy (check reason number 5 below) or avoiding some bogus charge (check reason number 4). That’s not how Facebook works, that’s not how contracts work, that’s not how life works.

2. It cites some source of information without a link.

You are a sophisticated Facebook user once you’ve been using the platform for more than a day. So you know how easy it is to link an article, a video, a picture, or many other forms of information. If a status update starts off by citing some source of information like a Channel 13 or WXYZ or some newspaper you’ve never heard of and it doesn’t contain a link to that original information then I want you to use some critical thinking skills. “Are they not linking this information because it’s common knowledge or because it doesn’t exist?” I want you to ask yourself. And then I want you to realize that you have no idea who Channel 13 is and why should you trust them. And then I want you to ignore the status update.

3. It pretends to be legal by mentioning the UCC or Statute of Rome or some such nonsense.

Look, I get that the legal system can be a bit mysterious because lawyers want to keep a reason for suffering through law school for three years. So part of this is on us–you don’t know what the UCC is except now I’m going to tell you. The UCC isn’t a law. It’s a code that is recommended to states to make a law and have it be common across all states (the U stands for Uniform). But it isn’t a law. So any status update that cites the UCC like it’s a law? Immediately bogus. Also if you see something that vaguely sounds like a law, like the Statute of Rome, think to yourself “Do I live in Rome?” If you do, I want you to get on your scooter and go drive around a bit. If you don’t, I want you to ignore the status update.

4. It says Facebook is about to start charging you.

I’m not saying that Facebook will always be free–that’s up to Facebook. They said they are always going to be free (see that post at the top) but they could change their mind. But even if they did change their mind, let’s think about it for a second–if Facebook were going to start charging its 1 billion plus users do you think you would find out about it the day before it happens? And do you think you would find out about it from a status update? An unsourced status update with no link that likely comes from one of your friends who, let’s face it, don’t post any technology news ever? Nope. If Facebook were going to start charging everyone you can be sure every news outlet would cover it and Facebook would be getting ahead of the message by alerting every user the moment you logged onto Facebook.

5. It tries to use anything but the Privacy settings to, you know, impact your Privacy settings.

Facebook has an incredibly robust Privacy settings page. It’s grown over the years, partially as a reaction to users asking for more Privacy settings. But while you can access many settings when you post something (like who can see it, what information it includes, whether it has a location, etc.) and you have many more global Privacy settings available via that funky lock icon in the top right corner of every Facebook page ever, one of the few places where you can’t change your privacy settings is by posting text in your status update. Because I know how important your status update is to you and your friends–but Facebook isn’t reading everything you post. Nor are they setting their computers to constantly monitor your status update to see if you’ve signaled some new relationship between yourself and Facebook. This is mostly because you’re being paranoid, but it’s also because…

6. You don’t get to modify your agreement with Facebook

Well, okay, that’s a bit harsh. You do have one way of modifying it–you can delete your account. Although even then the Facebook terms you accepted when you signed up have some applicability, namely as in what happens when you delete your account. But those terms you accepted when you signed up? Yeah, those were actually a contract and you don’t get to modify them without Facebook agreeing. Just like if you pay your rent by sending a check to your landlord and write a note on it saying “I hereby change my monthly rent to $5” that’s not going to work. The terms apply to you. The fact that you chose to accept them without reading the document? Guess who’s fault that is? Hint: not Facebook’s.

7. It says you must copy and paste, not share.

It seems silly that I’m even listing this one but it irks me. Besides the notion of having any status update with a legal impact, why would anyone think that copying and pasting is somehow more impactful than sharing? Have you ever signed a contract, ever? Of course you have–you’ve agreed to terms, you’ve signed up for cell phone plans, maybe you’ve bought a house or leased an apartment. Were you handed a paper to sign or told to check a box? Of course you were. You were never asked to write out a paragraph word for word so that it would apply to you. That’s just silly. Stop being silly.

There. Seven ways to detect a hoax post about Facebook’s privacy policy or a lot of other topics. We don’t need to do this again, do we?

IMPORTANT DISCLAIMER

SoMeLaw Thoughts are entirely my own opinion about social media legal issues and not the statement, opinion, or in any other way affiliated with Dell.

This means I could be completely wrong about everything I post here. Sure, I’ve practiced for over ten years in technology law and have supported Dell’s social media team for a fair amount of time, but if you get five lawyers in a room and ask a question you’re likely to get seven different opinions. Oh, and it’s a really boring room. And someone will probably start quoting Latin. So I could be totally wrong here.

This is also not specific legal advice for you. I don't know you. Even if I know you I didn't write this for you, I wrote it for the blog and you're reading it. You want legal advice? Hire an attorney! A good one.